Steve Benen writes today about Sen. Kyrsten Sinema's upcoming retirement:
Sinema’s retirement puts the future of the filibuster in doubt
This reminds me of something I've been meaning to mention: the filibuster is already dead.
This isn't a controversial point. In 2013 Democrats used the "point of order" procedure to end the filibuster for lower court nominations. In 2017 Republicans used it to end the filibuster for Supreme Court nominees.
It may seem as if these are limited examples that apply only to nominations, not legislation. But that's not so. The key point is much broader: both parties now explicitly accept that the majority party can override a filibuster at any time with 51 votes.
The fact that neither party has yet done this for legislation is immaterial. It's clearly legal and can be set in motion at any time. Both sides may still be pretending the filibuster exists, but that's mere habit. For all practical purposes, it's dead.
If that's the criteria, we should ask whether it ever existed.
Since both parties could have noticed 51 was enough at any time, the fact that neither party had until last decade is immaterial. So for practical purposes, it was always dead.
And now do the Senate.
Came to say the same, but to put it at the 70s when the current filibuster was put in place to make it easier to have a filibuster.
The filibuster was broken when they took away the requirement for it to be a public display.
Is that a bad thing?
Came to ask the same thing.
I'm old enough to remember the early 2000's, when the Democrat talking point was how undemocratic the filibuster was (rural states, non-population-based representation, blah blah) and that it was only those awful Republicans keeping it alive.
So where are we now? Is this the Democrats getting what they claimed to want (cf Republicans and Abortion, or UK Conservatives and Brexit) and realizing "uhh, hmm..."
Its almost like maybe Mom was right when she said "don't lie" and that doesn't change, no matter how clever you think you might be in your political strategy games...
The US Senate is the only legislative body in the world whose main goal is pretending that it is not a majority rule body.
Okay this is a dumb take. As long as the senate accepts it for legislation it exists.
Yes, this is correct.
Correct. And also, it doesn’t apply to budget reconciliation.
“But that's not so. The key point is much broader: both parties now explicitly accept that the majority party can override a filibuster at any time with 51 votes.”-KD
https://rooseveltinstitute.org/2023/01/03/the-filibuster-strikes-again-how-it-inhibited-workers-rights-in-the-117th-congress/
“Failed by a vote of 52 Y to 43 N.”
“In addition to all of the pro-labor bills described above that languished due to the filibuster in the 117th Congress, many more pro-democracy and civil rights bills were similarly felled. Perhaps most notable of these were the For the People Act—which would have expanded voter registration and voting access, restricted disenfranchisement efforts, and required states to establish independent redistricting commissions—and the John Lewis Voting Rights Advancement Act—which would have reinstated Section 5 of the Voting Rights Act of 1965 to require states with a history of voting discrimination to “pre-clear” any changes to voting rules with the federal government. Both passed the House and had the enthusiastic endorsement of President Biden, but stalled out after Republican Senators threatened to filibuster.”
This. That vote total doesn’t make any sense in a sentence that begins with “Failed by…” unless the filibuster exists, at least as a ritual that the 52 yes-voting Senators are committed to following.
Yup. Dunno why Kevin is trying to make this claim.
If it still exists as a means/excuse to not even bring a bill/motion/nomination to a vote in the senate… then the filibuster most certainly does still exist. Beliefs determine a lot of people’s actions or inactions, whether or not the thing believed in actually exists. (See Santa for children, God and the Devil for Christians, placebos for people feeling better as they suffer a disease, superstitions for people to go out of their way in avoiding doing something, etc.)
It’s very evident from their behavior - especially in not bringing up certain bills that passed the House - that Democratic senators still firmly believe a filibuster exists. Which means it might as well exist in real life too… there isn’t much difference between “this rule keeps me from doing X” and “my belief that this rule exists keeps me from doing X.”
The history of US government since at least Bush II has been the dismantling of things that people thought existed (for the reasons you describe) but which didn't actually exist in law.
Turns out as soon as people (call them malicious, call them principled, call them whatever) decided they cared more about some issue than about respecting these "Beliefs" they could in fact do what they wanted.
While you’re correct that it technically exists, until we get one of the parties to stop pretending it exists, then we are still stuck with the consequences of the kabuki theater
In other words, there haven't been 51 votes to remove it even it that would allow passage of popular programs.
So what you're saying, KD, is that the filibuster exists as a kind of "gentlepersons' agreement" that the majority party won't force the senate to operate on a purely majoritarian basis except in certain areas where majority rule has already been asserted. Isn't that the kind of thing we sometimes call a "norm," something like an unwritten rule that's abided by even though it isn't written down in the rule book?
It's been a bad norm in R hands (and before that, but less often, in southern D hands), to be sure-- they took a practice that was reserved for really important things, like filibustering civil rights bills that, while righteous and long overdue and needed, would fundamentally change legal and social relations-- and turned it into routine obstruction. They turned a tool of often reactionary conservatism into one of pure reaction and obstruction. So the time for respecting it seems past.
But let's recognize that what we're talking about is jettisoning one norm of doubtful value because the norms about when to use it have been badly misapplied, ridiculously violated for partisan gain. So in other words it's just one float in the long parade of willful gop destruction of unwritten rules, aka norms, and trump isn't even in the first half of the train.
It has ALWAYS been the case that a filibuster can be overridden with 51 votes, but by changing the rules, not by simply voting for a piece of legislation. The Senate, like the House, adopts rules at the beginning of each session applicable to that session, and those rules are passed by majority vote and can be amended at any time by majority vote. If at any time a majority wants to amend the rules by ending the filibuster, or by exempting some things (eg judicial nominations) from it, it can do so.
The problem always has been, once undone, it won't be brought back, and Senators LIKE the filibuster because it gives them more power as individuals, as well as giving their party more power when it's in the minority. It's like the idiotic procedure Senator Tub-O-Sh!t used to block military promotions for all that time: they didn't swat him down like a fly because they all think they might want to use that trick for something later.
What's brought it to the present state is that McConnell weaponized it beyond all previous measure. Instead of using it occasionally and strategically, he used it as a regular tactic to paralyze the Senate. And that could have been brought to a close, except for the two most annoying, self-centered members (then) of the Dem caucus.
It should still be trashed. There arguably were reasons to keep it, once (although its origin is basically that of Jim Crow state racists blocking civil rights legislation), but there aren't any more.
The filibuster may be slowly dying, but it's not dead yet. It will be dead when the majority party votes to change the rules, or just ignores them. It might happen in the next Congress, but that will depend on just which Senators get elected. If a party has a one- or two-vote majority, what happens will depend on what those* one or two want to do, just as it apparently depended on what Manchin and Sinema wanted (I say apparently because if Manchin or Sinema had changed their minds someone else could have stepped up to defend the filibuster).
It is not certain at all that the Senate will go by bare majority on all issues in the next Congress - I would bet against it.
*"those" who keep the filibuster alive could be any Senators.
The fact that neither party has yet done this for legislation is immaterial.
Huh?
Everyone else has done a very thorough job of explaining why Drum's comment is nonsense, good job folks.
The filibuster may be dying, but it's not dead yet. It will not die until either 51/50+VP Senators agree to kill it completely, or there is a governing majority of at least 51/50+VP Senators who all agree that carving out further exceptions to the filibuster is now a mere technicality in passing legislation, not a substantial matter that needs to be considered carefully independently of the merits of the legislation itself. That condition has never held so far, as should have been apparent when Joe Manchin voted against a filibuster carveout for his own voting rights bill back in 2022 (which failed 48-52, with Manchin and Sinema voting against the carveout).
Harry Reid put up with nearly five years of Republican delays and potential filibusters on nominations before he finally got the votes to invoke the nuclear option in November 2013. That was after Republicans finally made it clear that they were going to filibuster not just individual nominees, but anyone Obama nominated to the DC Court of Appeals, by filibustering all 3 of his nominees for the 3 vacancies. That got Reid the votes to be able to invoke the nuclear option, but he still lost 3 votes from his caucus (Dems controlled the Senate 55-45 in 2013, but the vote on invoking the nuclear option was 52-48). That should make it clear that it wasn't seen as a mere technicality.
Democrats are clearly getting closer to being ready to get rid of the legislative filibuster. But you can't just count the (D) or (R) next to a Senator's name and assume that they will be willing to trash the filibuster when they are in the majority, even for their major legislative priority.
Here's how the filibuster will die: the GOP gets both House and the White House and then kills the filibuster to pass a national abortion ban.
Depends on how big the Republican margin is in the Senate. I can't see either Collins or Murkowski voting to kill the filibuster over abortion, so if they only have a 50-51 vote majority, they probably can't do it. There might be some others who would also oppose filibuster repeal on principle, though I don't know how many. But if they get to a 57 vote majority or something like that with the trifecta, the legislative filibuster is probably toast.
How could a national abortion ban (or a "codified Roe" for that matter) survive Court challenge when the Court has already said that this is a state-level power?